Enforcement options
4.1 There are a range of options open to officers involved in regulation. In the first instance we will seek to provide information, advice and guidance, unless breaches are severe with potentially serious consequences or otherwise require immediate action to be taken. Targeted and proportionate enforcement measures help to deliver the good value for money services and strong local leadership envisaged in the Council’s Corporate Strategy.
4.2 When considering formal enforcement action the officer will discuss the circumstances with those suspected of a breach and take these into account when deciding on the best approach. This will not apply where immediate action is required to prevent or to respond to a serious breach or where to do so is likely to defeat the purpose of the proposed enforcement action.
4.3 The officer will give clear reasons for any formal enforcement action to the person or business against which action is being taken at the time the action is taken. The reasons will be confirmed in writing at the earliest opportunity. The complaints and relevant appeals procedure for redress will also be explained at the same time.
4.4 Businesses may enter into a contractual partnership arrangement (either individually or as part of a trade association) with a local authority- which may be TMBC or another authority- for the purposes of obtaining tailored advice on matters such as environmental health and trading standards. This is known as the “Primary Authority” scheme. Sole traders or businesses with only one outlet/ premises, can access an informal (i.e. non-contractual) version of this scheme, which is known as “Home Authority”. If a business has a Primary Authority (or Home Authority scheme), the Council will contact the Primary or Home Authority before enforcement action is taken, unless immediate action is required because of imminent danger to health, safety or the environment. Officers will abide by LBRO guidance concerning the Primary Authority scheme.
4.5 The methods of enforcement selected will be calculated to produce the highest reasonable standards of compliance within the least time. In taking action to ensure compliance, officers will consider the following when deciding on the most appropriate enforcement method:
- The seriousness of the breach
- The different options for remedying the breach
- The degree of risk
- The circumstances of each case and the likelihood of recurrence
- Previous history of the offender
- Age and circumstances of the offender
- Date of the offence
- Likelihood of achieving a satisfactory outcome
- Precedent effect
- General attitude of the offender
- Legal imperatives, e.g. statutory requirement to serve a notice
- Relevant guidance
- Sufficiency of admissible evidence
- Public Interest
- Prevalence of the offence locally or nationally
4.6 A variety of enforcement options are set out below which could be used at any stage - they are not sequential.
Advice
4.7 In the first instance, consideration will be given to whether advice regarding a breach or potential breach of legislation is appropriate. When advice is given it will normally be put in writing unless the breach is very minor or the matter is rectified on the spot.
Referral to Mediation Service
4.8 In appropriate cases officers may consider a referral to the Mediation Service. An impartial, and confidential service that provides a process for those in dispute to reach agreement on a range of issues such as noise, rubbish, pets, damage to property, harassment, boundaries, fences and shared areas.
Warning Letter
4.9 In certain circumstances it may be appropriate to issue a warning letter bringing alleged offences to the attention of the person responsible for the alleged breach indicating ways to avoid commission of similar offences in the future. A warning letter will set out what should be done to rectify the breach and to prevent re-occurrence. If a similar breach is identified in the future, this letter will be persuasive in considering the most appropriate enforcement action to take on that occasion. Such a letter cannot be cited in court as a previous conviction but it may be presented in evidence.
4.10 A warning letter might be given, for example, for low community impact/ low risk “technical” breaches, where more formal action is not considered to be appropriate. If a warning letter is to be issued, it is essential that sufficient admissible evidence is available to substantiate the offence.
Voluntary Undertakings
4.11 The Council may accept voluntary undertakings that breaches will be rectified and/or recurrences prevented. The Council will take any failure to honour voluntary undertakings very seriously and enforcement action is likely to result.
Fixed Penalty Notice
4.12 Fixed Penalty Notices (FPNs) can now be issued for a variety of different offences. They are an effective enforcement tool as they allow officers time to focus on more detailed and complex cases. The FPN provides the offender with an opportunity to pay a financial penalty as an alternative to being prosecuted. If a fixed penalty is not paid, the Council may commence criminal proceedings or take other enforcement action in respect of the breach.
4.13 FPNs may be issued when an officer believes that an offence has been committed. The officer must therefore have adequate evidence to support a prosecution if the FPN is not paid. Normally FPNs would not be issued where the breach is more serious or recurrent e.g. the offender has already received a FPN for the same offence in the same year.
Orders and Statutory Notices
4.14 Subject to the specific rules governing the use of different notices and orders, these are generally used where there is a clear breach of the law, where the degree of risk or environmental impact or harm from the situation is significant and where a remedy needs to be secured within a set period of time. In some instances the service of a notice will be mandatory, for example, abatement notices under the Environmental Protection Act 1990. In some instances, the serving of orders and notices will be discretionary, such as Public Space Protection Orders under the Anti-Social Behaviour Crime & Policing Act 2014
Seizure of Property, Documents and Equipment
4.15 Officers will on occasion require evidence for their investigation and, where necessary, will use their statutory powers to enter upon land, seize property, documents or equipment. Where premises are searched this will be subject to the conditions in the Notice of Powers required by PACE. Occupier(s) will be given a notice summarising their rights together with the powers of the officer.
Simple Caution
4.16 The Council may issue a caution where there is sufficient evidence to prosecute but where the public interest is not best served by issuing proceedings. A caution can only be administered where the offender consents to the caution and admits the offence. It will be formally recorded and may be cited in subsequent court proceedings.
Prosecution
4.17 The Council will exercise its discretion when considering whether to initiate a prosecution. When deciding whether to prosecute, the Council will apply the Code for Crown Prosecutors, issued by the Crown Prosecution Service (See Appendix B) and the decision whether or not to prosecute will be taken by the Council’s legal team. In particular, the Council will consider whether there is a reasonable prospect of a conviction, bearing in mind any statutory defence available to the defendant, and any other factors which may preclude a successful conviction. Where the circumstances warrant it, prosecution without prior warning may occur.
4.18 Once the Council has issued criminal proceedings for breach of a statutory notice, it is unlikely that the Council will withdraw proceedings simply because the offender subsequently complies or “regularises” the breach. This is because the criminal process is not a mechanism for securing compliance with statutory notices. Rather, the Court will need to consider whether any late attempt to comply mitigates the offence.
Costs
4.19 Investigations and enforcement activity arising from non-compliance is often very costly to Local Authorities. In all circumstances the Council will seek to recover its costs during civil and criminal proceedings including (but not necessarily limited to) prosecutions and food condemnation orders. Such costs may include the costs of investigation and enforcement, in addition to any legal costs. The Council will take all appropriate action to secure costs awarded by the Courts if such costs are not paid in a timely fashion, for example by way of charging order or by instructing bailiffs. A summary of the basis upon which the Council will seek its legal costs is set out at Appendix D. The Council will also seek to recover any barristers’ fees in full where external counsel has been appointed.
Proceeds of Crime
4.20 Where possible the Council will work with Accredited Financial Investigators and make use of the provisions of the Proceeds of Crime Act 2002.
Data Sharing
4.21 To facilitate the prevention, detection and investigation of crime, intelligence and information may be shared and exchanged with other Council departments, other Local Authorities or other agencies such as Police Forces, UK Border Agency, HM Revenue and Customs, Clean Kent, Kent Fire & Rescue Service, the Food Standards Agency, the Health and Safety Executive, Public Health England and others. Such sharing of data will comply with the provisions of data protection legislation.
Forfeiture
4.22 In some circumstances the legislation permits officers to seize goods and apply to the court for them to be made subject to a forfeiture order. The Council will exercise this power in appropriate cases e.g. seizure of noise making equipment.
Injunction
4.23 An injunction may be sought where the circumstances of any case cause a significant problem or threat to health and the normal process of law (statutory notices, prosecution etc.) is likely to be ineffective. Depending on the circumstances, the Council might not necessarily take other enforcement action before seeking an injunction.
Civil Injunctions for Anti-Social Behaviour
4.24 The Council has the power to apply to the magistrates’ court for a civil injunction under the Anti-Social Behaviour, Crime & Policing Act 2014. Civil injunctions should be considered wherever it is thought that they will be a successful remedy for tackling anti-social behaviour and where other methods may be less effective. This does not necessarily mean that other methods have to be tried first.
Publication of Sentencing Outcomes
4.25 Deterrence is an important part of the Council’s enforcement activities. To that end, the Council will consider publishing details of successful prosecutions in all cases. It is also important in maintaining transparency that the general public are kept informed of action which the Council takes.
4.26 When deciding whether to publish details of a prosecution, the Council will take into account the social need in making the information public. This will include factors such as:
- the significance of the offence committed;
- the effect of the offence in the local community;
- the frequency of such offences;
- whether the offence itself has attracted publicity
4.27 Where applicable, the Council will have to balance the public interest in publication with the data rights of the offender.
Arrangements for Monitoring and Review of Decisions Taken on Enforcement Action
4.28 Reviews of how the Enforcement Policy is practically applied and the outcomes of enforcement action undertaken will be carried out within Services. The results will be considered at team briefings.